“Zero-Tolerance DUI Bill Makes Zero Sense”

Once again, a bill that seeks to punish prior use of a controlled substance with an automatic DUI conviction is making its way through the Kentucky Legislature.

Like its predecessors, SB 5 cleverly attempts to bootstrap an ill-advised rule regarding all drugs onto a rule created for the purpose of measuring alcohol impairment. Under the provisions of SB 5, a driver who tests positive for traces of marijuana can be convicted of “driving under the influence” even if that driver is unimpaired at the time of arrest.

While such laws do little to actually make roadways safer, they do send many innocent people to jail and saddle them with criminal records for the rest of their lives. Current Kentucky DUI law requires prosecutors to prove that a suspect was impaired while driving. SB 5 seeks to circumvent current evidentiary standards by removing this requirement under the guise of public safety. If lawmakers want to make it tougher than it already is for Kentuckians to find and retain employment, clog court dockets, and cost taxpayers more money, then this is the bill to support.

SB 5 attempts to create the appearance of scientific reliability by requiring blood tests to be administered within two hours of operating a vehicle using a “scientifically reliable test.” However, the two hour standard was developed decades ago for measuring impairment caused by alcohol, not drugs like marijuana. Moreover, the test referred to in SB 5 is not a test for marijuana impairment, but merely a test for marijuana’s presence, which is not what DUI laws are supposed to punish.

The effect and perhaps even the aim of legislation like SB 5 is to punish prior drug use – predominantly marijuana use – by convicting drivers of DUI without scientifically reliable evidence that they were operating a vehicle while under the influence of anything.

“Zero-tolerance” laws are more than simply unjust; they are scientifically unsound, which is exactly why not one single state applies such a rule to alcohol. Furthermore, these laws are even less suited for marijuana, the traces of which are detectable by drug tests long after its intoxicating effects have worn off. In short, marijuana and alcohol affect the body in different ways and leave the body at different intervals. Marijuana impairment, for example, peaks within minutes of use and is seldom severe or long lasting. Conversely, alcohol impairment peaks much later after consumption and lasts for several hours, meaning there’s a true correlation between high alcohol levels detected in the blood and driver impairment.

A driver with high levels of THC (the active psychotropic ingredient in marijuana) in the blood may not be impaired in any manner if time has passed since the substance was last used. The person is most certainly not impaired days or weeks later, even though THC metabolites are still detectible. The inability to accurately measure marijuana impairment with a blood test is why both the National Highway Traffic Safety Administration and the National Institute on Drug Abuse have stated that marijuana impairment testing via blood sampling is unreliable.

Proponents of SB 5 will argue that Kentucky must maintain a zero-tolerance policy for any level of drugs in a driver’s blood in order to save lives. However, if that is the case, then why does Kentucky law tolerate blood alcohol levels of up to .08 percent?

The truth is, zero-tolerance laws aren’t about making roadways safer; they’re a disingenuous attempt to create a powerful, intrusive tool to root out those who use controlled substances such as marijuana, regardless of whether they operate an automobile under its influence. This type of justice is cruel, unusual and bad public policy.

If proponents believe granting authorities easier and more arbitrary access to your fluids enhances public safety, then let them argue that point on its merits. If, however, this isn’t just an underhanded ploy to legislate morality and really is about highway safety, how about introducing a bill that seeks to establish a task force comprising physicians, phlebotomists, researchers, state police, prosecutors and defense attorneys to identify real solutions to the problems associated with detecting impaired driving caused by marijuana use? Not only would this be real progress, it could position Kentucky as a national leader in the development of scientifically reliable, marijuana-specific impairment testing, which is still in its infancy.

Driving under the influence of any substance is dangerous and should not be tolerated, but sending innocent people to jail for DUI using methods incapable of accurately measuring impairment is not the answer. Lawmakers should reject SB 5 as they have done in the past, and instead focus on finding real, scientifically valid ways to detect impaired drivers and get them off Kentucky highways.

(Nathan Miller is a Kentucky native, an attorney and legislative analyst for the Marijuana Policy Project in Washington, D.C., and a graduate of the University of Louisville Brandeis School of Law.)